Van Horn v. Burlington, C. R. & N. R'Y Co.

• Citation: 12 N.W. 752,59 Iowa 33
• Parties: VAN HORN v. B., C. R. & N. R'y Co
• Decision Date: 14 June 1882
• Court: United States State Supreme Court of Iowa

12 N.W. 752

59 Iowa 33

VAN HORN v. B., C. R. & N. R'y Co

Supreme Court of Iowa, Des Moines

June 14, 1882

Appeal from Benton District Court.

ACTION to recover the value of certain horses alleged to have been killed by reason of the negligence of the defendant in running one of its trains. The accident occurred in the city of Vinton, between one and two o'clock at night. The plaintiff had turned the horses loose. They strayed upon the defendant's track and lay down at a point where the track crossed one of the streets of the city. The negligence complained of is, that the defendant was running its train at an improper rate of speed. The defendant denied all negligence upon its part, and averred that the injury was caused through the negligence of the plaintiff. There was a trial to a jury and verdict and judgment rendered for the plaintiff. The defendant appeals.

REVERSED.

J. & S K. Tracy, for appellant.

Traer & Voris, for appellee.

OPINION

ADAMS, J.

I.

Two persons were allowed to testify against the objection of the defendant, that they judged from the sound of the train that at the time of the accident it was running very rapidly and more than six miles an hour, which it appears was the highest speed allowed by ordinance of the city. The defendant insists that the speed of a moving train cannot be determined by the sound with sufficient accuracy to justify the admission of evidence in regard to it, where the witness has no knowledge of it except as derived from the sound.

Small differences in the speed of moving trains cannot probably be determined by the sound, but we think that the difference between the speed of a slowly moving and of a rapidly moving train, could be distinguished quite easily from the sound by a person in the immediate vicinity. The evidence, we think was not inadmissible. Such evidence, we think, could not under all circumstances, be deemed wholly unreliable. What weight the evidence in question was entitled to, under the circumstances shown, it was for the jury to determine.

II. The defendant offered in evidence an ordinance of the city of Vinton prohibiting horses from running at large. The plaintiff objected to the ordinance and the objection was sustained.

The defendant's position is that where a person owning horses in a city allows them to run at large by night, and lie down and sleep on a railroad track, and the horses are injured by a passing train,...